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Every year, teens and pre-teen girls from all over the world flock to New York in an attempt to break into the fashion industry after being discovered by scouts, individual designers or photographers.[1] The reality for these aspiring models is markedly different from household names like Irina Shayk, Kate Moss or the daughters of Hollywood Celebrities Johnny Depp and Will Smith.

The average model startlingly begins her career between the ages of 13 and 16 and in many cases is housed in apartments with her peers without parental or adult supervision.[2] Further approximately 56 percent of underage models are rarely accompanied by guardians on set, so they are largely left unsupervised and at the mercy of demanding and predatory directors or photographers.[3]

All too often, these young girls look their modeling agency to ensure their well-being, financial or otherwise, but as Sara Ziff points out in a New York Times Opinion, these agencies also contribute to the abuses they experience by looking out solely after their own interests.[4] Modeling agencies which are mostly unlicensed and unregulated management companies unlike talent agencies for actors or other types of entertainers can reap a disproportionate amount of a model’s earnings or take advantage of the models’ inexperience or a language barrier to draft onerous contracts.[5]

The average model’s career will be over by age 20[6], so common sense dictates that the girls who pursue this path should be able to have a back-up plan by going to school to get an education during their modeling careers. However the traditional classroom environment is ill-suited to the demands of the fashion industry. Fittings during New York Fashion Week can take place until the wee hours of the night and it is difficult to see how it – as well as runways or shoots – could be reconciled with a student’s traditional school schedule.[7] It is thus not entirely surprising that the girls are dissuaded from educating themselves and are expected to sacrifice their education for their careers.[8]

Aspiring models journey to New York with the hope that they will live a glamorous lifestyle and be paid handsomely for their work, but the reality is that compensation is not always suitable. According to Kelli Ortega, while models are occasionally a fixed or hourly salary, payment for modeling usually comes in the form of free clothing or accessories from the designer for whom they modeled.[9]

One might reasonably assume that primarily up-and-coming labels orchestrated such a practice and he would be mistaken. At least one designer Marc Jacobs was known to do this.[10] Following complaints from a 17 year old model that she was required to work long hours, Jacobs casually responded that the models were “paid in trade. If they don’t want to work with us, they don’t have to.” In some cases, models will work for the exposure that their work will bring. Neither free gifts nor exposure are substitutes to actual compensation.[11]

Even though these young girls model clothing for adults, they face constant pressure to be as thin as possible in order to get hired and as a matter of fact, 64 percent of models have been asked by their agencies to lose weight.[12] Considering that the average model weighs 23 percent less than the average woman (while also being taller), it is not surprising that models tend to suffer from eating disorders at a rate 10 times greater than the national average.[13]

In an attempt to redress the unacceptable practices within the fashion industry, the Council of Fashion Designers of America and some state governments – in response to the federal government’s slow response- have taken swift action, respectively by releasing guidelines calling for the industry to hire models older than 16 and by amending labour provisions.[14]

New York modified its labour regime so underage models can now be designated Child Performers, thereby granting them some measure of protection. Brands that want to cast these models have to “submit a notice of its intention to use child performers; ensure those employed have valid work permits (the work permits notably require that the models attain satisfactory academic standards or no longer be required to attend school; and that the model receives a medical attestation that she is physically fit to work); adhere to the restricted working hours – including breaks after four hours of work; and keep evidence that the underage models’ pay is entered into their trust funds as stipulated by the law.”[15]

Although several states have passed legislation specifically protecting child models, the policies are not uniform across all states; they tend to offer inconsistent or insufficient protections.[16] Child actors and models are currently exempt from the child labour provisions of the Fair Labor Standards Act (FLSA), so any protection they are entitled to is handled on a state-by-state basis.[17]

Amending the FLSA and using New York’s labour laws as a template could improve these stopgap measures.

New York congresswoman Grace Meng introduced a bill that would establish rules on the number of hours that children can work, salaries and compensation as well as liability for workplace sexual harassment.[18] As welcome as the bill may be, it regrettably does not require that performers and models obtain a medical attestation stating that they are physically fit. I think that this requirement would go a long way toward fighting eating disorders these young girls are more prone to suffer from.

[1] Craig Tepper, “A Model For Success: Why New York Should Change the Classification of Child Models under New York Labor Laws,” (2013) 24:2 N.Y. St. B.A. Ent. Arts & Sports L.J.

[16] A Department of Labor table illustrates the discrepancy in protection between the states; states like Colorado and Mississippi offer no protection at all, while states like California and New York have robust legislative regimes: < http://www.dol.gov/whd/state/childentertain.htm >

1.

Title VII of the Civil Rights Act[1] prohibits employers from discriminating against employees or applicants with respect to employment compensation, terms, conditions, privileges or opportunities on the basis of an individual’s race, color, religion, or national origin. In Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, inc.,[2] the United States Supreme Court considered whether employers could be liable under Title VII for refusing to hire applicants on the basis of a religious observance or practice if they had no direct knowledge that applicants required accommodation.

2.

Samantha Elauf was a practicing Muslim who wore a headscarf every day as part of her understanding of her religion’s requirements. She applied for a position at an Abercrombie & Fitch store where the assistant manager interviewed her. During the interview, neither Elauf nor the assistant manager expressed reservations regarding a potential conflict between the headscarf and the company’s Look Police: a dress code premised on Abercrombie’s East Coast Collegiate style that prohibited “caps”. The assistant manager scored the interview high enough to recommend Elauf for hiring, until the supervision she contacted informed her that the headscarf would violate the Look Police. Elauf was consequently not hired. The Equal Employment Opportunity Commission sued Abercrombie on her behalf.

3.

Writing for the majority, the late Justice Antonin Scalia stated that an employer would be liable under Title VII if an applicant could show that his or her “need for an accommodation was a motivating factor in the employer’s decision”.[3] Moreover the provision for disparate-treatment does not require that the employer have actual knowledge of the need for an accommodation; an employer would be liable under Title VII if its hiring practices are conducted with the aim of avoiding accommodation and are based on unsubstantiated suspicions that accommodation might be necessary.[4]

Moreover Title VII does not demand mere neutrality; as the Court notes, it imposes an affirmative obligation to accommodate religious observances and practices.[5]

The Supreme Court sent the case to lower courts to determine whether Elauf had been discriminated against.

4.

As Gurjot Kaur, senior staff attorney of the Sikh Coalition notes, the Supreme Court’s decision affirms the basic right to practice one’s faith freely,[6] but it nevertheless leaves several important questions unanswered and raises some practical issues. Justice Scalia declares that employers will not be liable under Title VII by refusing to hire applicants provided that a desire to avoid accommodations is not the motive behind the refusal.[7]

Are employers now obligated to disclose motives behind their hiring practices, at the very least, upon request from applicants who were not selected? Or more narrowly upon request from applicants from religious minority groups who were not selected? On the one hand, the Court’s silence on this matter should be seen positively as it afford the trier of fact a measure of discretion to decide how to adjudicate cases before them. Nevertheless on the other hand, a lack of guidance on this issue could inevitably lead to applicants increasingly going to court to seek redress for employment discrimination, whether it is justified or not. In future cases, a court may have to address whether employers are obligated to disclose why employees were not hired, but now the Equal Employment Opportunity decision represents a positive step in the right direction.

Workplace religious discrimination against Muslims have increased by 143 percent since 2001 and in 2011, it accounted for 21.8 percent of charges by the Equal Employment Opportunity Commission.[8] A review of case studies conducted by Ravitch, Bitkker and Idleman suggests that Muslims have usually been unsuccessful in pursuing religious accommodation requests through the court system.[9] Perhaps at least now, this decision will reverse this unfortunate trend of discriminating on the basis of religion.

DISCLAIMER: THE FOLLOWING INFORMATION IS NOT INTENDED TO BE LEGAL ADVICE AND IS NOT GUARANTEED TO BE CORRECT, COMPLETE OR UP-TO-DATE. THEREFORE, IF YOU NEED LEGAL ADVICE, YOU SHOULD CONSULT A LICENSED ATTORNEY IN YOUR AREA .

Introduction

The taxi-hailing application Uber has, as a result of its immense popularity with users, expanded in well over 270 cities since its launch 6 years ago.[1] The company operates a marketplace through which customers and local drivers are paired. As part of its business model, Uber classifies the drivers as independent contracts and by virtue of this classification, the Uber drivers must pay expenses out of their own pockets, receive no guaranteed hour wages or a salary and they receive no employee benefits.[2] In addition, Uber is thereby not subject to the Canadian withholding, remitting and reporting requirements as well as social security taxes that companies that hire employees must pay.

Issue

1) Are Uber drivers employees or independent contractors?

Uber drivers likely are employees because the nature of their work and duties evidences a finding that there was an employment relationship between the parties. The primary test to determine the existence of this relationship is whether the worker is performing services “as a person in business on his own account”.[3] This is ascertained by looking at a two-step approach that firstly considers the subjective intent of the worker and the company that engages his services and secondly, examines whether the subjective intent of the parties is sustained by an objective reality.[4]

Analysis

Subjective intent of the parties

Uber and its drivers likely intended that the drivers perform the service of transporting clients on their own account as independent contractors. This can be seen be seen from either the contractual relationship the parties have entered into or by looking at the conduct of the parties; the presence of invoices and registration for tax purposes can be helpful indicia.[5]

The contract between Uber and the driver stipulates that “[t]hrough its license of the mobile application…, [Uber] provides a platform for Users to connect with independent transportation providers.”[6] Moreover several other contractual clauses could support the notion that the drivers were providing their services as independent contractors, namely a provision granting the drivers the discretion to accept transportation requests[7]; and moreover clause 2 of Uber’s Terms and Condition (T&C) states that the drivers acknowledge that they are not employed by Uber.[8] The drivers must accept the T&C drafted by Uber prior to gaining access to the platform, so it is likely that the intention of the workers was to act as independent contractors.

A further determination could be made by looking at whether the drivers reported their income as independent contractors. Based on the foregoing, the parties likely intended for the drivers to be considered as independent contractors.

Whether the intention of the parties is sustained by an objective reality

The stated intention of the parties to treat the drivers as independent contractors is likely not sustained by reality. This inquiry involves consideration of the factors set out in Wiebe Door, namely “the level of control over the worker’s activities, whether the worker provides his own equipment, hires his helpers, managers and assumes financial risk, and has an opportunity of profit in the performance of his tasks.”[9]

In this case, Uber exercised a significant level of control over the drivers with respect to how duties had to be accomplished. The drivers are obligated to maintain a properly registered and licensed vehicle no more than 10 years old and in good operating condition.[10] Furthermore, the vehicle’s cleanliness must be maintained while providing transportation to customers.[11] The task of providing transportation to customers must be done with professionalism, courtesy and care.[12] A failure to do adhere to the terms of the Uber agreement may result in a driver losing access to the platform.[13] Nevertheless, the drivers have the flexibility to choose their own hours.[14] Moreover in carrying out their tasks the drivers are required to provide their own vehicles and additionally are responsible for defraying their operational costs themselves out of their own pockets.[15] However in some instances, Uber has given drivers an iPhone so that they could access the application in return for a refundable deposit.[16]

Furthermore, the T&C state that drivers may not share their login information with anyone, thereby limiting their ability to hire helpers.[17] The drivers are bound to assume their won financial risks and losses to the extent that income they earn from the application is contingent on their own efforts; notwithstanding this, Uber’s T&C will grant the drivers an indemnity whenever customers fail to appear at a pick-up location[18] and may also do so to compensate drivers for unbuzy days.[19]

Finally the chance drivers have to realize a profit in the performance of their tasks is limited by Uber. Their remuneration is set at a fixed rate by the company and additionally, the company precluded them from accepting tips from customers.[20] The drivers in spite of this could nevertheless adjust their pay by working as much as they desire.

The aforementioned factors are indicative of a relationship that features elements from both a contract of services and a contract for services. By considering the whole scheme of the operation, the legal operation between parties would likely be defined as employer and employee, thereby controverting the intent of the parties.

Conclusion

The drivers likely are employed by Uber. Despite contractual provisions to the effect that the drivers would be classified as independent contractors, this intent does not seem to be sustained by the objective reality of the relationship between the parties, which indicated that the drivers were actually employees. In sum, it would appear that the drivers and Uber had an employee-employer relationship.

According to the National Post, a review of Supreme Court decisions by the public policy think-tank Macdonald-Laurier notably reveals that the court has overturned its Charter decisions in a growing number of cases and moreover, notes that that the Court has never been this divided given that 5 of the 10 cases reviewed by the think-tank had dissenting opinions.

Should we interpret these findings as a sign that there is a rift on the bench or alternatively, be concerned that lower courts question whether they are bound to the principle of stare decisis?

In my view, these findings are not indicative of either a divided or vacillating court. Overturning judicial decisions as well as penning dissents are fundamental features of our legal tradition.

Overturning Charter Decisions

As McLachlin CJ and Lebel J note in Fraser, overturning a judicial precedent is not an issue to be taken lightly.[1] Great care must be taken to overrule a decision and to that end, the Court will consider whether it is preferable to adhere to an incorrect precedent, or to correct an error.[2] Carter v Canada, which overturned Rodriguez v British Columbia follows this logic.

Carter – like most of the decisions that were overturned in the report – was heard approximately 2 decades after its Rodriguez counterpart. Public opinion and the legislative landscape on the matter of physician-assisted death for the terminally ill have changed in the last 2 decades; a majority of Canadians now support it.[3]

Moreover, the “Charter is engrafted onto the living tree that is the Canadian constitution… Thus to borrow the words of Lord Sankey… It must be viewed as a living tree capable of growth and expansion within its natural limits.”[4] What this means is that our constitution is an instrument that can grow and adapt to reflect modern realities. Values that were once held under the Charter may change over time as societal consensuses develop over new ones.

Dissenting Opinions

The practice of penning dissenting opinions has deep roots in Canada and in many other legal systems. As Heureux-Dubé J notes, dissenting opinions serve several important functions, such as contributing to the development of the law.[5]

Values, customs and perspectives within society may change over time to represent new values, customs and perspectives. It follows from this that the dissenting opinion of today may be the majority opinion of tomorrow.[6]

Dissenting opinions perhaps more importantly than anything else may illustrate that the law is open to several possible interpretations and outcomes, particularly as it pertains to complex legal issues.[7] Thereby an uptick in dissents should not necessarily be seen as evidence of a divided court, but rather should be seen as a court considering a range of possible options.